When am I considered separated from my spouse in a divorce case?

THE date of separation is one of the most important facts to determine in a divorce case because it defines when the community interest ends and when separate property interest commences in a marriage.  All property acquired by a married person during the marriage while domiciled in the State of California is community property (Family Code Section 760).  That means any property acquired by either spouse regardless of who’s name it is on is community and each spouse has a half interest on the asset.  That characterization continues until the date of separation.  Any property acquired after the date of separation is that spouse’s separate property.  If you are the spouse that is not in control of the asset, it would be in your interest to stretch the marriage as long as possible and postpone the date of separation as late as can be so you can characterize more assets as community and also obtain spousal support for a longer duration.  If you are the spouse that has control of the money, it would be in your interest to shorten the marriage as much as possible and to establish a sooner date of separation to minimize the community interest of your soon to be ex-spouse.

So how does the court determine the date of separation?  In the case of Marriage of Davis, the California Supreme Court held that the couple needs to be living separate and apart in order to be separated.  The court looked into the legislative intent of the original statute that was over 100 years old.  However, this case holding was abrogated by the state legislature when it enacted Family Code Section 70 effective January 1, 2017 by defining “Date of Separation” in the California Family Code.

Effective January 1, 2017, the “date of separation” is statutorily defined to mean the date a “complete and final break in the marital relationship has occurred,” as evidenced by (i) a spouse having “expressed to the other spouse his or her intent to end the marriage” and (ii) conduct that is “consistent with his or her intent to end the marriage.” New Fam.C. § 70. Fam.C. § 70 abrogates prior case law that made living in separate residences an additional, indispensable prerequisite to establishing the date of separation. [Fam.C. § 70(c)] ) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.

So not only do you have to express to your spouse that you are now separated but you have to act accordingly.  You cannot tell your spouse that you are separated but are still going out on “date nights” or going on “cruise vacations” as a couple.  Your conduct has to reflect your expression of a separation from your spouse.  The flip side of the coin is under the new statute, you can be separated even if you are still living together if you have communicated to your spouse that you are separated and you conduct yourself in the house not like a spouse but more like a roommate including sleeping in separate rooms, not having intimacy, and not going out as a couple.

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Please note that this article is not legal advice and is not intended as legal advice.  The article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C.  This article is not a solicitation.

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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist.  He was President of the Philippine American Bar Association.  He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association.  He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010.  Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.